The following message was submitted to the W3C in
response to its request for comment on its proposed
Patent Policy Framework.
O’Reilly & Associates, as a member of the W3C, objects to the
proposed Patent Policy Framework, dated August 16, 2001. We
believe that the Web’s success depends on fully open standards
that can be implemented without restrictions by open source
developers as well as commercial developers, large and small.
Therefore, we oppose RAND licensing as an option
for W3C working groups that are developing standards.
W3C work should be done exclusively on a Royalty-Free basis, as
it has up until now. That is the only way the W3C can
ensure that a Web standard truly serves the public good.
We oppose RAND because requiring developers to pay is discriminatory.
We see the proposed patent policy framework as changing the rules
of the game at the midway point. This especially affects
independent developers who were the first to support the
Web by implementing new technology based on Web standards. One
need only look to the wide range of free XML tools to
appreciate the tremendous contribution of these developers.
The proposed patent policy framework states that “Members invest
significant research effort in the development of their own intellectual
property portfolios, so are concerned about protecting and benefiting from
proprietary technology they have developed or acquired.” One
must conclude that the W3C is really about maximizing the investments
of its members rather than increasing the public benefit of the Web.
The policy makes no mention of the interests of those independent developers
who have contributed heavily to the success of the Web by
investing in the development of non-proprietary technology. The
proposed policy states that the Web community has “a longstanding preference
for Recommendations that can be implemented on a royalty-free (RF) basis.”
It is much more than a preference; it is an absolute requirement.
Under the proposed patent policy framework,
the W3C commits to keeping core standards royalty-free,
but sets up the opportunity for “higher layer” standards
to be chartered under RAND licensing. The W3C will
be forced to decide whether a working group is
working on a higher or lower layer. One
reason the W3C exists is that the IETF once determined
that the Web was a higher level application, not
deserving of the same consideration as its lower-level
protocols. The distinction between high and low often
proves meaningless and depends on the interests of
those drawing the maps of the layers.
We recognize that the proposed patent policy does
attempt to address the challenges that patents are
presenting to collaborative standards development.
We support the W3C’s efforts to tighten the rules that
force the disclosure of patents and IPR of those involved
in the development of standards under the auspices
of the W3C.
In fact, we’d like to see the W3C lead the Web community in
fighting the imposition of patent rights on the Web.
As an international organization, the W3C should take a global view
of the public good and oppose the narrow, US-centric view that
rationalizes software and business-method patents.
The Web is rooted in openness, much more radically so
than any computer system before it. The W3C should
champion this radical view as the reason why
the Web flourished and the reason for the W3C’s existence.
It should not compromise its mission by granting its members
the ability to impose special rights and restrictions on
the Web community.
The W3C’s responsibility to the entire world of web users must
come before its obligations to its members.
We would like to see Tim Berners-Lee affirm
his commitment to completely open standards and use his position
as the Director of the W3C as well as the inventor of the Web
to defend the Web against academic, governmental or commercial
efforts to impose new restrictions. At the very least, the
W3C should not be endorsing such restrictions, as the patent
policy framework clearly does. W3C policy should seek to
remove obstacles to openness rather than accommodate members who
come bearing patent portfolios.
In summary, we believe that there are no reasonable restrictions
that could be placed on Web standards, and the proposed
patent policy framework should be rejected because it introduces RAND
licensing. To do otherwise would erode the public’s confidence
in the W3C as well as alienate independent developers whose
free and open source implementations are critical to the